Citation Nr: 0822956
Decision Date: 07/11/08 Archive Date: 07/23/08
DOCKET NO. 05-35 597A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to initial, separate 10 percent ratings for
service-connected bilateral tinnitus.
2. Entitlement to an initial rating in excess of 30 percent
for post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. L. Wallin, Counsel
INTRODUCTION
The veteran served on active duty from June 1990 to August
1990, September 1993 to September 1996, and February 2003 to
April 2004. The veteran also has a period of Reserve
service.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an April 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina. The RO, in pertinent part, awarded
service connection for PTSD and assigned a 30 percent
evaluation effective April 2004. Service connection was also
awarded for tinnitus with a single 10 percent evaluation
effective April 2004.
The April 2005 rating decision also denied entitlement to
service connection for Irritable Bowel Syndrome (IBS). The
veteran expressed disagreement with the denial in May 2005.
Thereafter, service connection was awarded for IBS in a
September 2005 Decision Review Officer decision. A 10
percent rating was assigned effective April 2004. The
veteran again expressed disagreement, but this time with the
initial rating assigned. In a November 2005 statement the
veteran indicated that an initial 30 percent rating would
satisfy his appeal. Subsequently, by way of an April 2006
rating action, the RO awarded the 30 percent rating
retroactive to the original grant of service connection. As
this constitutes a full grant of the benefits sought on
appeal, the matter is no longer in appellate status.
The claim of entitlement to an initial rating in excess of 30
percent for PTSD is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDING OF FACT
The veteran's service-connected bilateral tinnitus is
assigned a single 10 percent rating, the maximum rating
authorized under Diagnostic Code 6260.
CONCLUSION OF LAW
There is no legal basis for the assignment of a schedular
evaluation in excess of 10 percent for bilateral tinnitus.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic
Code 6260 (2003, 2007); Smith v. Nicholson, 451 F.3d 1344
(Fed. Cir. 2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a) (2007). The United States Court
of Appeals for Veterans Claims (Court) has held that the
statutory and regulatory provisions pertaining to VA's duty
to notify and to assist do not apply to a claim if resolution
of that claim is based on statutory interpretation, rather
than consideration of the factual evidence. See Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001).
In the instant case the facts are not in dispute. Resolution
of the veteran's appeal is dependent on interpretation of the
regulations pertaining to the assignment of disability
ratings for tinnitus. As will be shown below, the Board
finds that the veteran is already receiving the maximum
disability rating available for tinnitus under the applicable
rating criteria. Furthermore, regardless of whether the
veteran's tinnitus is perceived as unilateral or bilateral,
the outcome of this appeal does not change.
Therefore, because no reasonable possibility exists that
would aid in substantiating this claim, any deficiencies of
VCAA notice or assistance are rendered moot. See 38 U.S.C.A.
§ 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001)
(compliance with the VCAA is not required if no reasonable
possibility exists that any notice or assistance would aid
the appellant in substantiating the claim).
Analysis
In an April 2005 rating decision, the RO granted service
connection for tinnitus, rated 10 percent disabling. The
veteran contends that he should have initial, separate 10
percent ratings for tinnitus in each ear.
Tinnitus is evaluated under Diagnostic Code 6260, which was
revised effective June 13, 2003, to clarify existing VA
practice that only a single 10 percent evaluation is assigned
for tinnitus, whether the sound is perceived as being in one
ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic
Code 6260, note 2 (2007).
In Smith v. Nicholson, 19 Vet. App. 63 (2005), the Court
reversed a Board decision that found that, under pre-June
2003 regulations, no more than a single 10 percent rating
could be provided for tinnitus, whether perceived as
bilateral or unilateral. The Court held that pre-1999 and
pre-June 13, 2003, versions of Diagnostic Code 6260 required
that VA assign dual 10 percent ratings for "bilateral"
tinnitus where it was perceived as affecting both ears.
VA appealed the Court's decision in Smith to the United
States Court of Appeals for the Federal Circuit (Federal
Circuit). To avoid burdens on the adjudication system,
delays in the adjudication of other claims, and unnecessary
expenditure of resources based on court precedent that may
ultimately be overturned on appeal, the Secretary imposed a
stay at the Board on the adjudication of tinnitus claims
affected by Smith. The specific claims affected by the stay
essentially included all claims in which a claim for
compensation for tinnitus was filed prior to June 13, 2003,
and a disability rating for tinnitus of greater than 10
percent was sought.
Recently, the Federal Circuit reversed the Veterans Court's
decision in Smith, and affirmed VA's long-standing
interpretation of Diagnostic Code 6260 as authorizing only a
single 10 percent rating for tinnitus, whether perceived as
unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344
(Fed. Cir. 2006). Citing Supreme Court precedent, the
Federal Circuit explained that an agency's interpretation of
its own regulations was entitled to substantial deference by
the courts as long as that interpretation was not plainly
erroneous or inconsistent with the regulations. Id. at 1349-
50. Finding that there was a lack of evidence in the record
suggesting that VA's interpretation of Diagnostic Code 6260
was plainly erroneous or inconsistent with the regulations,
the Federal Circuit concluded that the Court erred in not
deferring to VA's interpretation.
As a consequence of that holding, on July 10, 2006, the
Secretary rescinded the stay that had been imposed on all
claims affected by Smith, and directed the Board to resume
adjudication of the previously stayed claims consistent with
VA's longstanding interpretation that a single 10 percent
disability rating is the maximum rating available under
Diagnostic Code 6260, regardless of whether the tinnitus is
perceived as unilateral or bilateral.
In view of the foregoing, as the veteran filed his service
connection claim in February 2005, Diagnostic Code 6260
effective June 2003 precludes an evaluation in excess of a
single 10 percent rating for tinnitus, whether the sound is
perceived as being in one ear, both ears, or in the head.
38 C.F.R. § 4.87. Therefore, the veteran's claim for
initial, separate 10 percent ratings for his service-
connected tinnitus must be denied. Id. As the disposition
of this claim is based on the law, and not the facts of the
case, the claim must be denied based on a lack of entitlement
under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).
ORDER
A schedular evaluation in excess of 10 percent for tinnitus
is denied.
REMAND
The veteran has also filed a claim of entitlement to an
initial evaluation in excess of 30 percent for PTSD. A
determination has been made that additional evidentiary
development is necessary. Accordingly, further appellate
consideration will be deferred and this case remanded for
action as described below.
A remand is necessary in order to afford the veteran an
additional VA examination. 38 U.S.C.A. § 5103A(d). An
initial 30 percent rating has been assigned effective April
2004 for the service-connected PTSD. The veteran contends
that a higher initial rating is warranted due to such
symptoms as two to three panic attacks per week, an increase
in suicidal thoughts, impaired judgement, social isolation,
impaired abstract thing, feelings of anger and despair, and a
deterioration in his social and family relationships.
Through his authorized representative the veteran asserts
that his PTSD symptomatology has increased in severity since
his last VA examination in March 2005, over three years ago.
A preliminary review appears to show a deterioration in the
veteran's mental health as result of an increase in PTSD
symptoms, to include but not limited to, hallucinations,
suicidal thoughts, impaired memory, paranoia, and panic
attacks. While it seems clear from a reading of the record
that the PTSD has worsened, the Board can not ascertain to
what extent in order to assign a higher disability rating
without a new VA examination. The Board is not free to
substitute its own judgment for that of such an expert. See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
Where there is evidence of a material change in the veteran's
condition or as in the instant case, when the veteran asserts
that the service-connected disability in question has
undergone an increase in severity since the time of his last
VA examination, the prior VA examination report is considered
inadequate for rating purposes and a new VA examination is
required. 38 C.F.R. § 3.327(a);
See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997).
After receipt of any additional records obtained upon remand,
the veteran must be afforded a VA examination in connection
with the claim of entitlement to an initial evaluation in
excess of 30 percent for PTSD. The examiner is asked to
address the specific questions set forth in the numbered
paragraphs below.
A remand is also necessary to obtain outstanding VA
outpatient treatment records. In an August 2006 statement,
the veteran indicated that he sought treatment at the VA
emergency room on April 6, 2007, for suicidal thoughts.
These records have not been associated with the claims
folder. Such must be obtained upon remand. 38 C.F.R.
§ 3.159(c)(2).
Finally, the last VA outpatient treatment records that have
been associated with the claims folder are dated in May 2006.
Ongoing VA medical records dated subsequent to May 2006
pertinent to the issue should also be obtained. 38 U.S.C.A.
§ 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet.
App. 611 (1992) (VA medical records are in constructive
possession of the agency, and must be obtained if the
material could be determinative of the claim).
As this matter is being remanded, the agency of original
jurisdiction should take efforts to ensure that it provides
the veteran with notice that meets all due process
requirements, including those addressed by recent case from
the Court, Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).
In light of the foregoing, this case is hereby REMANDED to
the RO/AMC for the following actions:
1. The RO should send the veteran notice
that meets all due process requirements,
including those addressed by Court
decision in Vazquez-Flores v. Peake, 22
Vet. App. 37 (2008). In the letter, the
RO should notify the veteran that, to
substantiate the claim for a higher
initial evaluation for the service
connected PTSD:
(a) the veteran must provide, or ask VA
to obtain, medical or lay evidence
demonstrating a worsening or increase in
severity of the disability and the effect
that worsening has on the his employment
and daily life;
(b) if the diagnostic code under which
the veteran is rated contains criteria
necessary for entitlement to a higher
disability rating that would not be
satisfied by the veteran demonstrating a
noticeable worsening or increase in
severity of the disability and the effect
of that worsening has on the veteran's
employment and daily life (such as a
specific measurement or test result), the
Secretary must provide at least general
notice of that requirement to the
claimant;
(c) The veteran must be notified that,
should an increase in disability be
found, a disability rating will be
determined by applying relevant
diagnostic codes; and
(d) The notice must also provide examples
of the types of medical and lay evidence
that the veteran may submit (or ask VA to
obtain) that are relevant to establishing
entitlement to increased compensation.
2. The RO should contact the veteran and
request that he identify all healthcare
providers, VA and non-VA, inpatient and
outpatient, who have treated him for
PTSD since his discharge from service.
He should be requested to complete and
return the appropriate release forms so
that VA can obtain any identified
evidence. All identified private
treatment records should be requested
directly from the healthcare providers.
Specifically, the RO should obtain: (a)
VA outpatient treatment records from the
Columbia VA Medical Center dated from May
2006 to the present; and (b) the April 6,
2007, emergency room report. All
information, which is not duplicative of
evidence already received, should be
associated with the claims file. All
requests for records and their responses
should be clearly delineated in the
claims folder.
3. After the receipt of any additional
medical records obtained in accordance
with this remand, the RO should schedule
a psychiatric examination to ascertain
the current severity of the veteran's
service connected PTSD. The veteran's
claims folder must be available to, and
reviewed by, the examiner in conjunction
with the examination. The examiner
should indicate that the claims folder
was reviewed.
Following review of the claims file and
examination of the veteran, the examiner
should offer an opinion regarding the
degree of functional impairment caused by
PTSD, as opposed to any other psychiatric
disorders found. The examiner should
include a Global Assessment of
Functioning score for the PTSD. The
examiner should also comment on the
impact that the veteran's PTSD has on his
ability to obtain and maintain gainful
employment. All pertinent clinical
findings and the complete rationale for
all opinions expressed should be set
forth in a written report.
4. After completing the requested
actions, and any additional notification
and/or development deemed warranted, the
RO should readjudicate the claim on
appeal in light of all pertinent evidence
and legal authority. Adjudication of the
claim for a higher initial evaluation
should include specific consideration of
whether "staged rating" (assignment of
different ratings for distinct periods of
time, based on the facts found), is
appropriate. See Fenderson v. West, 12
Vet. App. 119, 125-126 (1999).
5. If any benefit sought on appeal
remains denied, the RO must furnish to
the veteran and his representative an
appropriate supplemental statement of the
case that includes clear reasons and
bases for all determinations and affords
them an appropriate time period for
response before the claims file is
returned to the Board for further
appellate consideration.
The purpose of this remand is to assist the veteran with the
development of his claim. The veteran has the right to
submit additional evidence and argument on the matter the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
(CONTINUED ON NEXT PAGE)
No action is required of the veteran until further notice.
However, the Board takes this opportunity to advise the
veteran that the conduct of the efforts as directed in this
remand, as well as any other development deemed necessary, is
needed for a comprehensive and correct adjudication of his
claim. His cooperation in VA's efforts to develop his claim,
including reporting for any scheduled VA examinations, is
both critical and appreciated. The veteran is also advised
that failure to report for any scheduled examination may
result in the denial of a claim. 38 C.F.R. § 3.655.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs